
(lass J/f/SScf 
Book , 



RULES OF PRACTICE 



FOR THE 



COURTS OF EQUITY 



OF THE 



UNITED STATES. 



Promulgated by the 
SUPREME COURT OF THE UNITED STATES, 

November 4, 1912. 






RULES OF PRACTICE 

FOR THE 

COURTS OF EQUITY 

OF THE 

UNITED STATES. 



Promulgated by the 
SUPREME COURT OF THE UNITED STATES, 

November 4, 1912. 



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MOV S !«"' 



INDEX TO EQUITY RULES. 



Rule. Page. 

Abatement, defenses formerly presentable by, to be made in answer 29 8 

Absence of persons who would be proper parties 39 11 

Account, matters of, reference to master 59 18 

to be identified but not stated in master's report 61 19 

forms of, before master 63 19 

Action, at law, erroneously begun as suit in equity transfer 22 6 

joinder of, causes of 26 7 

to be prosecuted in name of real party in interest 37 11 

Additional rules, by district court 79 25 

Administrator as party 37 11 

Admissibility of evidence offered to be passed on by court 46 13 

Admission of execution, etc., of documents, etc 58 17 

Advancement of causes, notice of interlocutory orders, etc 6 2 

Affidavit, plaintiff's, of noncompliance with decree, attachment to 

issue 8 3 

to be made of service of process by person appointed 

therefor 15 5 

of expert witnesses in patent and trade-mark cases, pro- 
visions as to 48 14 

required on application for continuance 57 17 

to be identified but not stated in master's report. 61 19 

previously used in court, etc., may be used before master 64 20 

on application for preliminary injunction 73 22 

Affirmation in lieu of oath 78 25 

Agreed statement, record on appeal , 77 24 

Alternative defenses may be stated in answer 30 9 

Amended bill, answer to 32 10 

Amendments generally 19 6 

permitted of any process, pleading, record, etc., 19 6 

of bill as of course 28 8 

not after defendant's pleading filed, except, etc. 28 8 

on suggestion of defect of parties 43 12 

of pleadings on substitution of parties 45 13 

Answer, subpoena, proper process to compel 7 2 

time for 12 -4 

to be filed within time named in subpoena 16 5 

enlarging time for filing 17 5 

when to be filed, on motion set aside decree pro confesso. . 17 5 

exceptions to, for scandal and impertinence, shall not obtain 21 6 

defenses to be presented in 29 8 

to be filed if motion to dismiss denied 29 8 

if not filed, decree pro confesso entered 29 8 

defenses formerly presentable by plea in bar or abatement, 

to be made in 29 8 

what to contain 30 9 

amendment of, by leave, on reasonable notice 30 9 



IV INDEX TO EQUITY RULES. 



Answer, to omit statement of evidence 

to avoid general denial of averments of bill 

to specifically admit, or deny, or explain facts upon which 

plaintiff relies 

contents, counter-claim 

to state counter-claims 

may state defenses in alternative 

cause at issue on filing of, unless, etc 

to amended bill 

new or supplemental, to be filed to amended bill 

exceptions for insufficiency of, abolished 

if insufficient may be amended or matter stricken out .... 

when defect of parties suggested, proceedings on 

may be stricken out for failure to answer interrogatories or 

produce documents 

to be identified but not stated in master's report 

Appeal, injunction pending 

record on, differences as to 

reduction and preparation 

costs — correction of omissions 

agreed statement 

Appearance, filed with clerk to be noted in equity docket 

subpoena proper process to compel 

Appellant, to notify opposing party or solicitors, etc 

to file praecipe indicating portion of record on appeal . . . 

to condense evidence, etc 

Appellate court not to reverse decree unless 

court may direct further steps as justice may require . . . 
Appellee to file praecipe indicating additional portions of record on 

appeal 

Appointment and fees of stenographers 

compensation of masters 

Assistance, writ of, when to issue 

on refusal to obey decree for delivery of possession 

Attachment, provisions as to 

for noncompliance with decree 

not to be discharged unless upon full compliance with 

decree, etc 8 3 

may issue for failure to answer interrogatories or pro- 
duce documents 58 17 

Attendance of witnesses before commissioner, master, or examiner 52 15 
Averments of bill, if not denied, deemed confessed, except, eto. ... 30 9 
Bill, subpoena proper mesne process to compel appearance and an- 
swer to 7 2 

when filed, clerk to issue subpoena 12 4 

may be taken pro confesso if answer not filed, etc 12 4 

exceptions to, for scandal and impertinence, shall not obtain. . 21 6 



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INDEX TO EQUITY RULES. 



Bill, to be signed by solicitors 

of complaint, contents 

stockholder's 

stockholder's, what to contain 

amendment of, as of course 

amended, answer to 

supplemental, what necessary in 

of revivor and supplemental bills, what necessary in 

may be dismissed for failure to answer interrogatories or pro- 
duce documents 

verification of, on application for preliminary injunction, etc . . 

Bond on order suspending, etc., injunction pending appeal 

Books, clerk to keep equity docket, order book, equity journal. . . . 

papers, etc., production of, required by master 

Calendar, trial, case goes on, when 

Cause, speeding, provision as to, on motion set aside decree -pro 

confesso 17 5 

Causes, advancement, conduct and hearing of, notice of interlocu- 
tory orders for 6 2 

of action, joinder of 26 7 

frivolous, imposition of costs on exceptions to master's re- 
port 67 20 

Certificate, signature of solicitor to pleading to be considered 24 7 

Chambers, awarding process, commissions, orders, rules, etc., by 

judge at 1 1 

Charge to be identified but not stated in master's report 61 19 

Circuit Court of Appeals, if appeal lies to, rehearing not granted 

after term 69 21 

Circuit judge may dispense with motion day if public interest per- 
mits 6 2 

Citizenship, name and residence of each party to be stated in bill . 25 7 

Claim, further and better statement of nature of, may be ordered 20 6 

Claimants before master, examinable by him 65 20 

Class, representatives of, may sue or defend 38 11 

Clerical mistakes in orders and decrees, correction of 72 22 

Clerk, duties of 2 1 

to keep equity docket 3 1 

order book 3 1 

equity journal 3 ' 1 

motions grantable of course by 5 2 

to grant as of course, motions and applications not requiring 

order of court or judge 5 2 

to issue writ of assistance on refusal to obey decree for deliv- 
ery of possession 9 3 

to issue subpoena when bill filed, and not before 12 4 

of court, verification of pleadings before 36 10 

to send copies of interrogatories to solicitors of record 58 17 



VI INDEX TO EQUITY RULES. 



Clerk, office of, awarding of process, commissions, orders, rules, etc., 

by judge at 

when open 

master to return report into 

temporary restraining orders to be filed in 

statement as to appeal to be filed in 

Commissioner, attendance of witnesses before 

Commissions, award of, by judge at chambers, etc 

Compensation and appointment of masters, 

of master to be fixed by court 

Competency, etc., of questions asked before examiner not to be de- 
cided by him 

Computation of time — Sundays and holidays 

Conduct of causes, notice of interlocutory orders for 

Contempt for noncompliance with mandatory order, etc 

Continuances, provisions as to 

Copy of prcecipe indicating portions of record on appeal 

service of, indicating, etc 

Corporate officer to sign interrogatories under oath 

Corporation, when interrogatories to be answered by officer of ... . 

stockholder's bill against 

Correction of clerical mistakes in orders and decrees 

omissions in transcript on appeal 

Costs, payment of, and full compliance with decree before a dis- 
charge of attachment 8 3 

of plaintiff to be paid before court will set aside decree pro 

confesso, etc 17 5 

terms as to, when further and particular statement in plead- 
ing required 20 6 

to nominal parties 40 12 

stenographer's fees to be taxed as . 50 14 

of incompetent, etc., depositions to be dealt with by court . . 51 15 

on continuances, provisions as to 57 17 

proving execution or genuineness of document, etc 58 17 

reference to master 59 18 

exception to master's report 67 20 

may be imposed upon offending solicitors 76 24 

imposition of, for infraction of rule as to record on appeal . . 76 24 

Counsel, signature of 24 7 

to give notice of taking testimony before examiner, etc. . . 53 16 

consent of, to continuances, provisions as to 57 17 

to sign petition for rehearing 69 21 

Counter-claim, to be stated in answer 30 9 

to be replied to 31 9 

in default of reply to, decree pro confesso entered . . 31 9 



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INDEX TO EQUITY RULES. VII 

Rule. Page. 

Court, on motion or own initiative, may order redundant, impertin- 
ent or scandalous matter stricken out 21 6 

testimony usually to be taken in, at trial 46 13 

to deal with costs of incompetent, etc., depositions 51 15 

contempt of, by witness refusing to appear before commis- 
sioner, master or examiner 52 15 

may appoint standing masters in chancery 68 21 

provisions as to approval by, of appellant's statement, etc., 

on appeal 75 23 

district, additional rules by 79 25 

Creditor making claim before master examinable by him 65 20 

Cross bill, — counter-claim to be stated in answer, and not by 30 9 

Cross-examination of expert witnesses in patent and trade-mark 

cases 48 14 

witness where no notice of deposition given. 54 16 

Damage, averments in bill as to 30 9 

to be shown on application for preliminary injunction. . . 73 22 

Death of party, revivor 45 13 

Decrees of court to be entered in equity journal 3 1 

. process to issue to compel obedience to 7 2 

compelling obedience to, writ of sequestration 8 3 

discharge of attachment upon compliance with 8 3 

for specific performance, provision as to 8 3 

for performance of specific act, attachment when 8 3 

solely for payment of money, writ of execution on 8 3 

final, enforcement of 8 3 

for delivery of possession, writ of assistance on refusal to 

obey 9 3 

for deficiency in foreclosures, etc 10 4 

pro confesso on default in answer . 16 5 

when may be set aside 17 5 

to be followed by final decree 17 5 

final, following decree pro confesso 17 5 

pro confesso entered, if answer not filed, etc.. 29 8 

in default of reply to counter-claim . . . 31 9 

not to be reversed unless material prejudice would result . 46 13 

form of 71 21 

shall not recite pleadings 71 21 

correction of clerical mistakes in k 72 22- 

final, appeals from in injunction suits 74 22 

to be sent up with agreed statement on appeal 77 24 

Deeds, etc., decree for delivering up, attachment in 8 3 

Default to answer, bill taken pro confesso 16 5 

of reply to counterclaim, decree pro confesso 31 9 

in answer to amended bill, proceedings on 32 10 

Defect, court to disregard in proceeding not affecting substantial 

rights 19 6 

of parties resisting objection 43 12 

tardy objection to 44 13 



VIII INDEX TO EQUITY RULES. 

Rule. Page. 
Defendant, subpoena proper process to compel appearance and 

answer of 7 2 

if not found, writ of sequestration proper process to- 

issue, etc 7 2 

to take notice of certain decrees 8 3 

required to file answer on or before 20th day after ser- 
vice of subpoena 12 4 

service of subpoena to be upon 13 4 

to answer within time named in subpoena 16 5 

person refusing to join as plaintiff or defendant may be 

made defendant 37 11 

time within which to take deposition for 47 13 

Defense, further and better statement of nature of, may be ordered 20 6 

how presented 29 8 

what to be heard separately and disposed of before 

trial, etc 29 8 

testing sufficiency of 33 10 

Deficiency in foreclosures, etc., decree for 10 4 

Delay, signature of solicitor to pleadings certificate that pleadings 

not interposed for 24 7 

master to certify reason for any to court 60 18 

imposition of costs for, on exceptions to master's report. . 67 20 

Delivery of possession, writ of assistance to enforce 7 2 

Demands, joint and several 42 12 

Demurrers abolished 29 8 

Depositions to be taken in exceptional instances 47 13 

time within which to be taken 47 13 

taken before examiners, etc 49 14 

expense of taking to be advanced by party calling wit- 
nesses 50 14 

court to deal with costs of incompetent, etc 51 15 

under R. S. 863, 865, 866, 867,— cross examination. . . 54 16 

deemed published when filed 55 16 

on expiration of time for, case goes on trial calendar . . 56 16 

to be identified but not set forth in master's report. . . 61 19 

may be taken by master 62 19 

etc., former may be used before master 64 20 

previously used in court may be used before master . . 64 20 
Differences concerning directions as to contents of record on appeal, 

provisions as to 75 23 

Disability of any party to be stated in bill 25 7 

Discovery, interrogatories for, when to be filed 58 17 

Dismiss, motion to, setting down for hearing 29 8 

Dismissal of causes continued, if not reinstated 57 17 

District courts, always open for certain purposes 1 1 

to establish times and places when motions may be 

made and disposed of 6 2 

additional rules by 79 25 



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INDEX TO EQUITY RULES. IX 



District judge, may make, direct and award process, commissions, 

orders, rules, etc 

Documents, inspection and production of 

court may enforce inspection and production of 

interrogatories for discovery of, when to be filed 

execution or genuineness of, call for admission of 

identified but not set forth in master's report 

production of, required by master 

previously used in court may be used before master 

Dwelling house, service of subpoena by leaving copy at 

Equity Docket, clerk to keep 

index of 

noting of order in, not notice 

day of return of master's report to be entered in . . . 

Equity Journal, clerk to keep 

index of 

Equity, suit in, action at law erroneously begun as — transfer 22 6 

matters ordinarily determinable at law when aris- 
ing in, to be disposed of therein 23 6 

Error or defect in proceedings, court to disregard when not affecting 

substantial rights 19 6 

Evidence, mere statement of, to be omitted from bill 25 7 

admissibility of, to be passed on by court 46 13 

offered and excluded, proceedings on 46 13 

affidavits of expert witnesses in patent and trade-mark 

cases, when not to be used as, 48 14 

taken before examiners to be returned to court 49 14 

taken before examiners, provisions as to 51 15 

objections to, taken before examiner, etc., 51 15 

court or judge may enforce answers to interrogatories and 

production of documents containing 58 17 

master may direct mode of proving matters before him . . 62 19 

before master on examination to be taken down 65 20 

how to be stated in record 75 23 

Ex parte, cause to be proceeded with after decree pro confesso 16 5 

Examination to be identified but not stated in master's report .... 61 19 

Examiners, evidence taken before, to be returned to court 49 14 

provisions as to 51 • 15 

not to decide on competency, materiality or relevancy 

of questions 51 15 

attendance of witnesses before 52 15 

notice of taking testimony before, etc 53 16 

cross examination of witness before 54 16 

Exceptions for insufficiency of answer abolished 33 10 

to evidence offered and excluded, provisions as to 46 13 

to master's report 66 20 

costs on 67 20 

Execution, writ of, provisions as to 8 3 

admission of, of documents, etc 58 17 



X 



INDEX TO EQUITY RULES. 



Rule. Page. 

Executor as party 37 11 

Expert witnesses, testimony of, in patent and trade-mark cases ... 48 14 
Facts, ultimate statement of, upon which relief asked, to be stated 

inbiU 25 7 

insufficiency of, as defense, how presented 29 8 

material, may be alleged in supplemental pleading 34 10 

not to be stated in master's report 61 19 

Fees, of stenographer 50 14 

File number, each suit and all papers, process, etc., to be marked 

with, and noted on equity docket 3 1 

Filing of deposition deemed publication 55 16 

Final hearing, points of law may be disposed of before 29 8 

Final process, issue and return of 1 1 

to be served by marshal, deputy, etc 15 5 

Foreclosure of mortgages, etc., decree for balance due 10 4 

Form of accounts before master 63 19 

decree 71 21 

Former depositions, etc., may be used before master 64 20 

Forms, technical, of pleadings abrogated 18 5 

alternative — prayer for specific relief may be in . . 25 7 

Genuineness of documents, admission of, etc 58 17 

Guardian as party 37 11 

may sue for infants 70 21 

ad litem, may be appointed by court or judge, etc 70 21 

Hearing on merits — making and directing interlocutory motions, 

orders, rules, etc., preparatory to . 1 1 

of causes, notice of interlocutory orders for 6 2 

final, points of law may be disposed of before 29 8 

on exceptions to report of master 66 20 

Heir as party to suits to execute trusts of will 41 12 

Holidays, legal, clerk's office not open 2 1 

computation of time 80 25 

Impertinence, scandal, exceptions to bills, answers, etc., for, shall 

not obtain 21 6 

Incompetents, suits by or against 70 21 

Indices of equity docket, order book and equity journal, clerk to 

keep 3 1 

Infants, nothing to be taken against as confessed 30 9 

nominal parties in suits not against 40 12 

may sue by guardian or by prochein ami 70 21 

guardians ad litem may be appointed to defend suits against 70 21 

Injunction, for specific performance, provision as to 8 3 

preliminary, and temporary restraining orders 73 22 

pending appeal 74 22 

Insufficiency of fact, defense of, how presented 29 8 

Interlocutory, motions, orders, rules, etc., making and directing. . 1 1 



INDEX TO EQUITY RULES. XI 

Rule. Page. 
Interrogatories, written, practice as to, to be followed in case of 

refusal of witness before master, examiner, etc. . . 52 15 

when to be filed 58 17 

when to be answered, etc 58 17 

court may enforce answers to 58 17 

to be answered separately and fully, in writing, 

under oath, and signed 58 17 

objections to, provisions as to 58 17 

copies to be sent by clerk to solicitors of record. . . 58 17 

examination of accounting party before master on 63 19 

claimants before master examinable on 65 20 

Intervention, when allowed 37 11 

Issue, of subpoena 12 4 

cause at, upon filing of answer, except, etc 31 9 

Joinder of causes of action 26 7 

parties, provision as to 37 11 

Joint and several demands 42 12 

Judge, district, may make, direct and award process, commissions, 

orders, rules, etc 1 1 

in chambers, orders by, to be entered in order book 3 1 

may suspend, alter or rescind motion granted as of course 

by clerk 25 

on notice, if any, may make interlocutory orders, etc 6 2 

verification of pleadings before 36 10 

Jurisdiction, ground on which depends to be stated in bill 25 7 

Justice, convenient administration of, joinder of causes of action to 

promote 26 7 

Land, decree for conveyance of, attachment in 8 3 

Law, action erroneously begun as suit in equity — transfer 22 6 

matters ordinarily determinable at, when arising in suit in 

equity, to be disposed of therein 23 6 

points of, may be disposed of before final hearing 29 8 

Letter, call for admission of genuineness of, etc 58 17 

Loss, immediate and irreparable to be shown on application for 

temporary restraining order 73 22 

Lunatic, nothing to be taken against as confessed 30 9 

Marshal, deputy, etc., to serve all process, except 15 5 

Master, attendance of witnesses before 52 15. 

reference to, exceptional not usual 59 

proceedings before 60 

duties of 60 

may proceed ex parte when 60 

may adjourn examination, etc., when 60 

to proceed with reasonable diligence 60 

reports of, — documents to be identified but not set forth . . 61 19 

powers of 62 19 



XII 



INDEX TO EQUITY RULES. 



Rule. Page. 

Master, to regulate all proceedings before him 62 19 

may require production of all books, papers, etc 62 19 

form of accounts before 63 19 

former depositions, etc., may be used before 64 20 

claimants before, examinable by him 65 20 

appointment and compensation of 68 21 

entitled to attachment for his compensation, when 68 21 

not to retain report as security for compensation 68 21 

pro hac vice, in particular cases, may be appointed by court 68 21 

in chancery, standing, may be appointed by the court. ... 68 21 

Master's report, return of — exceptions — hearing 66 20 

costs on exception to 67 20 

not to be recited in decree or order 71 21 

Material supplemental matter may be set forth in amended plead- 
ings 19 6 

Materiality of questions not to be decided by examiner 51 15 

Matter, further and better particulars of, in any pleading may 

be ordered 20 6 

new or affirmative, in answer, deemed denied by plaintiff. 31 9 
Matters ordinarily determinable at law, when arising in suit in 

equity, to be disposed of therein 23 6 

Merits, hearing on — making and directing interlocutory motions, 

orders, rules, etc., preparatory to 1 1 

Mesne process, issuing and returning 1 1 

subpoena shall constitute proper 7 2 

to be served by marshal, deputy, etc 15 5 

Misjoinder, defense of, how presented 29 8 

Mistakes, clerical, correction of, in orders and decrees 72 22 

Money, payment of, final process to execute decree for 8 3 

Mortgages, foreclosure of, decree for balance due 10 4 

Motions, interlocutory, making and directing 1 1 

when may be made 1 1 

etc., grantable of course, received and disposed of by clerk. 2 1 

grantable of course by clerk 5 2 

for mesne process grantable of course by clerk 5 2 

and applications not requiring order of court or judge 

grantable of course by clerk 5 2 

grantable of course by clerk may be suspended, etc., by 

judge 5 2 

requiring notice and hearing, times and places for 6 2 

to enlarge time for filing answer 17 5 

will not be granted unless payment of costs, etc 17 5 

to strike out, to test sufficiency of answer 33 10 

Motion day, 6 2 

may be dispensed with by senior circuit judge 6 2 

Motion to dismiss, defenses to be presented in 29 8 

Names of plaintiff and defendant to be stated in bill 25 7 

Nominal parties , 40 12 

Non est inventus, return of, issuance of writ of sequestration 8 3 



INDEX TO EQUITY RULES. XIII 



Nonjoinder, defense of, how presented. . 

Notary public, verification of pleadings before 

Notice, reasonable, to parties, of process,commissions,orders,rules,etc. 

of orders 

order without prior, to be mailed by clerk to party, etc. . . 

of interlocutory orders, etc 

defendant to take of certain decrees 

of motion to dismiss 

reasonable, of amendment of answer, by leave, etc 

reasonable, of filing supplemental pleading 

to be given to parties to be substituted 

reasonable, of motion to enforce answers, etc 

of taking testimony before examiner, etc 

to parties or solicitors of proceedings before master 

no preliminary injunction granted without 

Oath, may be made by plaintiff if special relief asked 

stockholder's bill to be verified by 

interrogatories to be signed under 

petition for rehearing to be verified by 

affirmation in lieu of 

Objections, to defect of parties 

tardy, to defect of parties 

to evidence taken before examiner, provisions as to. . . 

to be noted by examiner, etc 

Officers before whom pleadings verified 

Old rules abrogated 

Omissions, etc., in orders and decrees may be corrected without re- 
hearing 

of portions of record on appeal 

correction of, in record on appeal 

Orders, when may be made 1 

award of, by judge at chambers, etc 1 

interlocutory, making and directing 1 

grantable of course, received and disposed of by clerk .... 2 

filed with clerk to be noted in equity docket 3 

of court to be entered in equity journal 3 

made or passed by clerk, or judge in chambers, to be entered 

in order book 3 1 

made without notice, to be mailed by clerk 4 2 

noting of, in equity docket or entered in order book, not 

notice to parties 4 2 

interlocutory, notice of 6 2 

process to issue to compel obedience to 7 2 

mandatory, for specific performance, provision as to 8 3 

for delivery of possession, writ of assistance on refusal to 

obey 9 3 

in favor person not party, how enforced 11 4 

against person not party, how enforced 11 4 

that bill be taken -pro confesso on default 16 5 



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XIV 



INDEX TO EQUITY RULES. 



Rule. Page. 

Orders, shall not recite pleadings 71 21 

correction of clerical mistakes in 72 22 

temporary restraining, and preliminary injunctions 73 22 

Justice or Judge may make order suspending, etc., injunc- 
tion pending appeal 74 22 

Order book, clerk to keep 3 1 

to contain all orders made or passed by judge in cham- 
bers or by clerk 3 1 

index of, clei k to keep 3 1 

entry of order in, not notice 4 2 

Papers and orders filed with clerk, etc., to be noted in equity docket 3 1 

production of, required by master 62 19 

Parties, noting or entry of order not notice to 4 2 

persons not made . . 25 7 

generally — intervention 37 11 

joinder of 37 11 

proper, absence of persons who would be 39 11 

nominal, appearance of 40 12 

in cases of joint and several demands 42 12 

defect of, resisting objection 43 12 

defect of, tardy objection, proceedings on 44 13 

to give notice of taking testimony before examiner, etc 53 16 

clerk to send copies of interrogatories to if there be no record 

solicitor . ; 58 17 

notice to, of proceedings before master 60 18 

failing to appear before master. . . . . 60 18 

may be examined on oath by master 62 19 

accounting before master, how to bring in accounts 63 19 

to examine accounting party viva voce or upon interrogatory 63 19 

time for fifing exceptions to master's report by 66 20 

to verify petition for rehearing by oath 69 21 

to be given notice of preliminary injunctions, etc 73 22 

Party, when order made in absence of, clerk to mail copy 4 2 

heir as, to execute trusts of will 41 12 

death of, revivor 45 13 

procuring reference to master, payment of costs by 59 18 

Patent cases, testimony of expert witnesses in 48 14 

Persons not parties, process on behalf of and against 11 4 

Person appointed to serve process to make affidavit thereof 15 5 

Persons not made parties to bill 25 7 

Person, non compos, nothing to be taken against as confessed 30 9 

Persons joining as parties 37 11 

who would be proper parties, absence of 39 11 

Person making claim before master examinable by him 65 20 

Petition for rehearing 69 21 

Plaintiff entitled to subpoena as of course when bill filed 12 4 

time within which to take deposition for 47 13 

Plea in bar, defenses formerly presentable by to be made in answer 29 8 



INDEX TO EQUITY RULES. XV 

Rule. Page. 

Pleadings, filing of 1 1 

technical forms abrogated 18 5 

court may permit any to be amended 19 6 

further and particular statement in, may be required . . 20 6 
further and better particulars of matter stated in any 

may be ordered 20 6 

alteration in, on transfer of action at law erroneously 

begun as suit in equity 22 6 

to be signed by solicitors 24 7 

when bill may be amended as of course 28 8 

demurrers and pleas abolished 29 8 

supplemental, permitted when 34 10 

officers before whom verified 36 10 

fifing, or amendment of, on substitution of parties .... 45 13 

Pleas abolished 29 8 

Possession, delivery of, writ of assistance to enforce 7 2 

on refusal to obey decree for 9 3 

Powers of master 62 19 

Practice, additional rules for, by district court 79 25 

Praecipe, filing indicating portions of record on appeal 75 23 

Prayer for special relief to be stated in bill 25 7 

Precedence given to hearing in cases of temporary restraining orders 73 22 
Prejudice, unless material, will result appellate court not to reverse 

decree 46 13 

Preliminary injunctions and temporary restraining orders 73 22 

Preparation and reduction of record on appeal 75 23 

— costs — corrections 

of omissions ... 76 24 

Pro confesso, taking bills, motion for, grantable of course by clerk . . 5 2 

bill may be taken when answer not filed, etc 12 4 

decree on default in answer 16 5 

to be followed by final decree 17 5 

entered if answer not filed 29 8 

Proceedings before master, speeding of. 60 18 

powers in 62 19 

Process, mesne and final, issuing and returning 1 1 

award of, by judge at chambers, etc 1 1 

issuing and return of 1 1 

issued and returns thereon to be noted in equity docket . . 3 -1 

for taking bills pro confesso grantable of course by clerk . . 5 2 
mesne or final, to enforce and execute decrees grantable of 

course by clerk 5 2 

mesne and final, defined 7 2 

in behalf of and against persons not parties 11 4 

by whom served 15 5 

mesne and final to be served by marshal, deputy, etc 15 5 

may be served by person appointed therefor 15 5 

court may permit any process to be amended 19 6 

additional rules as to, by district court 79 25 



XVI INDEX TO EQUITY RULES. 



Prochein ami may sue for infants 

Production of books, papers, etc., may be required by master 

Publications of deposition, when filed 

Questions, competency, materiality, or relevancy of, not to be de- 
cided by examiner 

Record, court may permit any record to be amended 

how evidence to be stated in 

appellant's statement as to record on appeal to become 

part of — 

on appeal indicating portions of 

additional portions, how indicated 

reduction and preparation 

difference as to 

reduction and preparation — costs — correction 

of omissions 

agreed statement 

Reduction and preparation of record on appeal 

costs— corrections of omissions . . . 

Reference to master — exceptional, not usual 

Rehearing, petition for, provisions as to 

correction of clerical mistakes in orders and decrees 

without 

Reinstatement of causes, continued 

Relevancy of questions not to be decided by examiner, etc 

Relief, special, prayer for, to be stated in bill 

to be verified by oath of plaintiff, etc 

Reply — when required — when cause at issue 

none required unless answer asserts set-off or counter-claim 

Report, master's, to court 

documents to be identified but not set forth .... 

of master, exceptions, hearing 

costs on exceptions to 

not to be recited in decree or order 

Representatives of class may sue or defend 

Residence and citizenship of each party to be stated in bill 

Restraining orders, temporary, and preliminary injunctions 

Returns on process to be entered on equity docket 

Return of subpoena not executed 

of master's report — exceptions — hearing 

Revivor, bills of, what necesssry in 

on death of party 

Rights, substantial, court to disregard error or defect in proceed- 
ings which does not affect 19 



Rule. 


Page. 


70 


21 


62 


19 


55 


16 


51 


15 


19 


6 


75 


23 


75 


23 


75 


23 


75 


23 


75 


23 


75 


23 


76 


24 


77 


24 


75 


23 


76 


24 


59 


18 


69 


21 


72 


22 


57 


17 


51 


15 


25 


7 


25 


7 


31 


9 


31 


9 


60 


18 


61 


19 


66 


20 


67 


20 


71 


21 


38 


11 


25 


7 


73 


22 


3 


1 


14 


5 


66 


20 


35 


10 


45 


13 



INDEX TO EQUITY RULES. 



XVII 



Rule. 

Rules, when they may be awarded 1 

interlocutory, making and directing 1 

award of by judge at chambers, etc 1 

grantable of course, received and disposed of by clerk 2 

additional, by district court 79 

when effective 81 

old, abrogated 81 

Sale, amount due above proceeds of decree for . 10 

Scandal and impertinence 21 

Scandalous matter, signature of solicitor, certificate that none in- 
serted in pleading 24 

Sequestration, writ of, proper process if defendant not found .... 7 

against estate of delinquent 8 

person other than disobedient party to com- 
ply with mandatory order for specific 

performance 8 

Service of subpoena by delivery of copy, etc 13 

Set-off to be stated in answer 30 

replied to 31 

Signatures, pleadings to be signed by solicitors of record 24 

Solicitors, noting or entry of order not notice to 4 

of record to sign every pleading 24 

to be furnished copy of amended bill 28 

clerk to send copies of interrogatories to 58 

notice to, of proceedings before master 60 

offending, imposition of costs on 76 

to file prcecipe indicating portions of record on appeal .... 75 

Specific performance, by some other person than disobedient party 8 

Standing masters in chancery, courts may appoint 68 

Statement, further and particular in pleading may be required ... 20 

agreed as to record on appeal 77 

Stenographer — appointment — fees 50 

Stockholder's bill 27 

Subpoena shall constitute proper mesne process, etc 7 

issue of, time for answer 12 

to issue when bill filed and not before 12 

to contain names of parties 12 

when returnable 12 

memorandum at bottom thereof 12 

joint, against more than one defendant 12 

separately, for each defendant when against more than 

one 12 

manner of serving 13 

not executed, provision as to 14 

alias 14 

Substitution of proper parties by revivor 45 

Sufficiency of defense, how tested 33 



1 
1 
1 
1 

25 

25 

25 

4 

6 

7 
2 
3 



3 
4 
9 
9 

7 

2 

7 

8 

17 

18 

24 

23 

3 

21 

6 

24 

14 

8 

2 

4 

4 

4 

4 

4 

4 

4 
4 
5 
5 
13 
10 



XVIII INDEX TO EQUITY RULES. 



Suits, papers filed, process issued, etc., to be noted on equity docket 

to execute trusts of will — heir as party 

by or against incompetents 

Supplemental pleading, when may be filed 

Supreme Court, if appeal lies to, rehearing not granted after term 

Sundays, clerk's office not open 

and holidays— computation of time 

Temporary restraining orders and preliminary injunctions 

Term, awarding process, commissions, orders, rules, etc., by judge 

at chambers, etc., in 

orders, decrees, etc., of court to be entered in equity journal 

rehearing not granted after, if appeal lies 

Testimony, usually to be taken in open court at trial 

of expert witnesses in patent and trade-mark cases. . . 

may be taken down by stenographer 

to be signed by witness 

of witnesses before examiner to be read to him 

contempt of court for refusal of witness to give testi- 
mony before commissioner, examiner, etc 

notice of taking before master or examiner 

no further by deposition to be taken after case goes on 

trial calendar, except, etc 

how stated in record on appeal 

Testing sufficiency of defense 

Time, enlargement of, for full compliance with decree 

to file answer 

on expiration of, for depositions, case on trial calendar .... 

computation of— Sundays and holidays 

Trade-mark cases, testimony of expert witnesses in 

Transcript, cost of, to be advanced by party ordering 

of evidence before examiner not to include argument. 

on appeal, indicating portions of 

supplemental, correction of, omissions by . . 

Transfer of action at law erroneously begun as suit in equity 

Trial, testimony usually taken in open court, rulings on objections 

to evidence 46 13 

calendar, on expiration of time for depositions case goes on 56 16 

Trials, separate — court may order separate trials of joint actions 26 7 

Trustee as party 37 11 

Vacation, awarding process, commissions, orders, rules, etc. by judge 

at chambers in . . 1 1 

Value, averments in bill other than of, if not denied, deemed con- 
fessed 30 9 

Verification, bill to be verified by oath if special relief asked 25 7 

of pleadings, officers before whom taken 36 10 

petition for rehearing to be verified by oath etc 69 21 

Viva voce, master may examine persons before him 65 20 

Vouchers, production of, required by master , 62 19 

Will, execution of trusts of — heir as party 41 12 



Rule. 


Page. 


3 


1 


41 


12 


70 


21 


34 


10 


69 


21 


2 


1 


80 


25 


73 


22 


1 


1 


3 


1 


69 


21 


46 


13 


48 


14 


50 


14 


51 


15 


51 


15 


52 


15 


53 


16 


56 


16 


75 


23 


33 


10 


8 


3 


16 


5 


56 


16 


80 


25 


48 


14 


50 


14 


51 


15 


75 


23 


76 


24 


22 


6 



INDEX TO EQUITY RULES. XIX 



Witnesses, testimony usually to be taken in open court 

depositions of, may be taken when 

testimony of expert in patent and trade-mark cases. . . 

before examiners, etc., cross-examination of, etc 

testimony of, to be read to 

to be signed by 

refusing to sign testimony 

expense of taking deposition of, to be advanced by party 
calling 

attendance of before commissioner, etc 

refusing to appear before commissioner, master or ex- 
aminer 

compensation of for attendance before commissioner, 
master or examiner 

may be examined orally before court, or cross-examined 
before examiner, etc., when no notice of deposition 
given 54 16 

testimony of, by deposition, after case goes on trial 

calendar 56 16 

may be examined on oath by master 62 19 

testimony of, how stated in record on appeal 75 23 

Writing, call for admission of execution or genuineness of 58 17 

Writings, production of required by master 62 19 



Rule. 


Page. 


46 


13 


47 


13 


48 


14 


49 


14 


51 


15 


51 


15 


50 


15 


50 


15 


52 


15 


52 


15 


52 


15 



EULES OF PEACTICE FOE THE COUETS OF EQUITY 
OF THE UNITED STATES. 



Rule 1. 

DISTRICT COURT ALWAYS OPEN FOR CERTAIN PURPOSES — 
ORDERS AT CHAMBERS. 

The district courts, as courts of equity, shall be deemed always open 
for the purpose of filing any pleading, of issuing and returning mesne 
and final process, and of making and directing all interlocutory mo- 
tions, orders, rules and other proceedings preparatory to the hearing, 
upon their merits, of all causes pending therein. 

Any district judge may, upon reasonable notice to the parties, 
make, direct, and award, at chambers or in the clerk's office, and in 
vacation as well as in term, all such process, commissions, orders, 
rules and other proceedings, whenever the same are not grantable of 
course, according to the rules and practice of the court. 

2. 

CLERK'S OFFICE ALWAYS OPEN, EXCEPT, ETC. 

The clerk's office shall be open during business hours on all days, 
except Sundays and legal holidays, and the clerk shall be in atten- 
dance for the purpose of receiving and disposing of all motions, rules, 
orders and other proceedings which are grantable of course. 

3. 

BOOKS KEPT BY CLERK AND ENTRIES THEREIN. 

The clerk shall keep a book known as "Equity Docket," in which 
he shall enter each suit, with a file number corresponding to the folio 
in the book. All papers and orders filed with the clerk in the suit, 
all process issued and returns made thereon, and all appearances 
shall be noted briefly and chronologically in this book on the folio 
assigned to the suit and shall be marked with its file number. 

The clerk shall also keep a book entitled " Order Book," in which 
shall be entered at length, in the order of their making, all orders 
made or passed by him as of course and also all orders made or passed 
by the judge in chambers. 



2 RULES OF PRACTICE IN EQUITY. 

He shall also keep an " Equity Journal," in which shall be entered 
all orders, decrees and proceedings of the court in equity causes in 
term time. 

Separate and suitable indices of the Equity Docket, Order Book 
and Equity Journal shall be kept by the clerk under the direction of 
the court. 

4. 

NOTICE OF ORDERS. 

Neither the noting of an order in the Equity Docket nor its entry 
in the Order Book shall of itself be deemed notice to the parties or 
their solicitors; and when an order is made without prior notice to, 
and in the absence of, a party, the clerk, unless otherwise directed 
by the court or judge, shall forthwith send a copy thereof, by mail, 
to such party or his solicitor and a note of such mailing shall be made 
in the Equity Docket, which shall be taken as sufficient proof of due 
notice of the order. 

5. 

MOTIONS GRANTABLE OF COURSE BY CLERK. 

All motions and applications in the clerk's office for the issuing of 
mesne process or final process to enforce and execute decrees; for 
taking bills pro confesso; and for other proceedings in the clerk's 
office which do not require any allowance or order of the court or of a 
judge, shall be deemed motions and applications grantable of course 
by the clerk; but the same may be suspended, or altered, or rescinded 
by the judge upon special cause shown. 

6. 

MOTION DAY. 

Each district court shall establish regular times and places, not 
less than once each month, when motions requiring notice and hearing 
may be made and disposed of; but the judge may at any time and 
place, and on such notice, if any, as he may consider reasonable, make 
and direct all interlocutory orders, rulings and proceedings for the 
advancement, conduct and hearing of causes. If the public interest 
permits, the senior circuit judge of the circuit may dispense with the 
motion day during not to exceed two months in the year in any dis- 
trict. 

7. 

PROCESS, MESNE AND FINAL. 

The process of subpoena shall constitute the proper mesne process 
in all suits in equity, in the first instance, to require the defendant to 



RULES OF PRACTICE IN EQUITY. 3 

appear and answer the bill; and, unless otherwise provided in these 
rules or specially ordered by the court, a writ of attachment and, if 
the defendant cannot be found, a writ of sequestration, or a writ of 
assistance to enforce a delivery of possession, as the case may require, 
shall be the proper process to issue for the purpose of compelling 
obedience to any interlocutory or final order or decree of the court. 

8. 

ENFORCEMENT OF FINAL DECREES. 

Final process to execute any decree may, if the decree be solely for 
the payment of money, be by a writ of execution, in the form used in 
the district court in suits at common law in actions of assumpsit. If 
the decree be for the performance of any specific act, as, for example, 
for the execution of a conveyance of land or the delivering up of deeds 
or other documents, the decree shall, in all cases, prescribe the time 
within which the act shall be done, of which the defendant shall be 
bound, without further service, to take notice; and upon affidavit 
of the plaintiff, filed in the clerk's office, that the same has not been 
complied with within the prescribed time, the clerk shall issue a writ 
of attachment against the delinquent party, from which, if attached 
thereon, he shall not be discharged, unless upon a full compliance with 
the decree and the payment of all costs, or upon a special order of the 
court, or a judge thereof, upon motion and affidavit, enlarging the 
time for the performance thereof. If the delinquent party cannot 
be found a writ of sequestration shall issue against his estate, upon the 
return of non est inventus, to compel obedience to the decree. If a 
mandatory order, injunction or decree for the specific performance 
of any act or contract be not complied with, the court or a judge, 
besides, or instead of, proceedings against the disobedient party for a 
contempt or by sequestration, may by order direct that the act re- 
quired to be done be done, so far as practicable, by some other person 
appointed by the court or judge, at the cost of the disobedient party, 
and the act, when so done, shall have like effect as if done by him. 

9. 

WRIT OF ASSISTANCE. 

When any decree or order is for the delivery of possession, upon 
proof made by affidavit of a demand and refusal to obey the decree 
or order, the party prosecuting the same shall be entitled to a writ of 
assistance from the clerk of the court. 



4 RULES OF PRACTICE IN EQUITY. 

10. 

DECREE FOR DEFICIENCY IN FORECLOSURES, ETC. 

In suits for the foreclosure of mortgages, or the enforcement of 
other liens, a decree may be rendered for any balance that may be 
found due to the plaintiff over and above the proceeds of the sale or 
sales, and execution may issue for the collection of the same, as is 
provided in rule 8 when the decree is solely for the payment of money. 

11. 

PROCESS IN BEHALF OF AND AGAINST PERSONS NOT PARTIES. 

Every person, not being a party in any cause, who has obtained an 
order, or in whose favor an order shall have been made, may enforce 
obedience to such order by the same process as if he were a party; 
and every person, not being a party, against whom obedience to any 
order of the court may be enforced, shall be liable to the same process 
for enforcing obedience to such orders as if he were a party. 

12. 

ISSUE OF SUBPCENA — TIME FOR ANSWER. 

Whenever a bill is filed, and not before, the clerk shall issue the pro- 
cess of subpoena thereon, as of course, upon the application of the 
plaintiff, which shall contain the names of the parties and be return- 
able into the clerk's office twenty days from the issuing thereof. At 
the bottom of the subpoena shall be placed a memorandum, that the 
defendant is required to file his answer or other defense in the clerk's 
office on or before the twentieth day after service, excluding the day 
thereof; otherwise the bill may be taken pro confesso. Where there 
are more than one defendant, a writ of subpoena may, at the election 
of the plaintiff, be sued out separately for each defendant, or a joint 
subpoena against all the defendants. 

13. 

MANNER OF SERVING SUBPCENA. 

The service of all subpoenas shall be by delivering a copy thereof 
to the defendant personally, or by leaving a copy thereof at the dwel- 
ling-house or usual place of abode of each defendant, with some adult 
person who is a member of or resident in the family. 



RULES OF PRACTICE IN EQUITY. 5 

14. 

ALIAS SUBPOENA. 

Whenever any subpoena shall be returned not executed as to any 
defendant, the plaintiff shall be entitled to other subpoenas against 
such defendant, until due service is made. 

15. 

PROCESS, BY WHOM SERVED. 

The service of all process, mesne and final, shall be by the marshal 
of the district, or his deputy, or by some other person specially ap- 
pointed by the court or judge for that purpose, and not otherwise. 
In the latter case, the person serving the process shall make affidavit 

thereof. 

16. 

DEFENDANT TO ANSWER — DEFAULT — DECREE PRO CONFESSO. 

It shall be the duty of the defendant, unless the time shall be en- 
larged, for cause shown, by a judge of the court, to file his answer 
or other defense to the bill in the clerk's office within the time named 
in the subpoena as required by rule 12. In default thereof the plain- 
tiff may, at his election, take an order as of course that the bill be 
taken pro confesso; and thereupon the cause shall be proceeded in 
ex parte. 

17. 

DECREE PRO CONFESSO TO BE FOLLOWED BY FINAL DECREE — 
SETTING ASIDE DEFAULT. 

When the bill is taken pro confesso the court may proceed to a 
final decree at any time after the expiration of thirty days after the 
entry of the order pro confesso, and such decree shall be deemed ab- 
solute, unless the court shall, at" the same term, set aside the same, or 
enlarge the time for filing the answer, upon cause shown upon motion 
and affidavit. No such motion shall be granted, unless upon the 
payment of the costs of the plaintiff up to that time, or such part 
thereof as the court shall deem reasonable, and unless the defendant 
shall undertake to file his answer within such time as the court shall 
direct, and submit to such other terms as the court shall direct, for 
the purpose of speeding the cause. 

18. 

PLEADINGS TECHNICAL FORMS ABROGATED. 

Unless otherwise prescribed by statute or these rules the technical 
forms of pleadings in equity are abolished. 



O RULES OF PRACTICE IN EQUITY. 

19. 

AMENDMENTS GENERALLY. 

The court may at any time, in furtherance of justice, upon such 
terms as may be just, permit any process, proceeding, pleading or 
record to be amended, or material supplemental matter to be set forth 
in an amended or supplemental pleading. The court, at every stage 
of the proceeding, must disregard any error or defect in the proceed- 
ing which does not affect the substantial rights of the parties. 

20. 

FURTHER AND PARTICULAR STATEMENT IN PLEADING MAY 
BE REQUIRED. 

A further and better statement of the nature of the claim or de- 
fense, or further and better particulars of any matter stated in any 
pleading, may in any case be ordered, upon such terms, as to costs and 
otherwise, as may be just. 

21. 

SCANDAL AND IMPERTINENCE. 

The right to except to bills, answers, and other proceedings for 
scandal or impertinence shall not obtain, but the court may, upon 
motion or its own initiative, order any redundant, impertinent or 
scandalous matter stricken out, upon such terms as the court shall 
think fit. 

22. 

ACTION AT LAW ERRONEOUSLY BEGUN AS SUIT IN 
EQUITY — TRANSFER. 

If at any time it appear that a suit commenced in equity should 
have been brought as an action on the law side of the court, it shall 
be forthwith transferred to the law side and be there proceeded with, 
with only such alteration in the pleadings as shall be essential. 

23. 

MATTERS ORDINARILY DETERMINABLE AT LAW, WHEN ARISING 
IN SUIT IN EQUITY TO BE DISPOSED OF THEREIN. 

If in a suit in equity a matter ordinarily determinable at law arises, 
such matter shall be determined in that suit according to the principles 
applicable, without sending the case or question to the law side of the 
court. 



RULES OF PRACTICE IN EQUITY. 7 

24. 

SIGNATURE OF COUNSEL. 

Every bill or other pleading shall be signed individually by one or 
more solicitors of record, and such signatures shall be considered as a 
certificate by each solicitor that he has read the pleading so signed by 
him; that upon the instructions laid before him regarding the case 
there is good ground for the same; that no scandalous matter is in- 
serted in the pleading; and that it is not interposed for delay. 

25. 

BILL OF COMPLAINT — CONTENTS. 

Hereafter it shall be sufficient that a bill in equity shall contain, in 
addition to the usual caption: 

First, the full name, when known, of each plaintiff and defendant, 
and the citizenship and residence of each party. If any party be 
under any disability that fact shall be stated. 

Second, a short and plain statement of the grounds upon which the 
court's jurisdiction depends. 

Third, a short and simple statement of the ultimate facts upon 
which the plaintiff asks relief, omitting any mere statement of evi- 
dence. 

Fourth, if there are persons other than those named as defendants 
who appear to be proper parties, the bill should state why they are 
not made parties — as that they are not within the jurisdiction of 
the court, or cannot be made parties without ousting the jurisdic- 
tion. 

Fifth, a statement of and prayer for any special relief pending the 
suit or on final hearing, which may be stated and sought in alterna- 
tive forms. If special relief pending the suit be desired the bill should 
be verified by the oath of the plaintiff, or someone having knowledge 
of the facts upon which such relief is asked. 

26. 

JOINDER OF CAUSES OF ACTION. 

The plaintiff may join in one bill as many causes of action, cogni- 
zable in equity, as he may have against the defendant. But when 
there is more than one plaintiff, the causes of action joined must be 
joint, and if there be more than one defendant the liability must be 
one asserted against all of the material defendants, or sufficient 



8 RULES OF PRACTICE IN EQUITY. 

grounds must appear for uniting the causes of action in order to 
promote the convenient administration of justice. If it appear that 
any such causes of action cannot be conveniently disposed of together, 
the court may order separate trials. 

27. 

STOCKHOLDER'S BILL. 

Every bill brought by one or more stockholders in a corporation 
against the corporation and other parties, founded on rights which may 
properly be asserted by the corporation, must be verified by oath, and 
must contain an allegation that the plaintiff was a shareholder at the 
time of the transaction of which he complains, or that his share had 
devolved on him since by operation of law, and that the suit is not a 
collusive one to confer on a court of the United States jurisdiction of a 
case of which it would not otherwise have cognizance. It must also 
set forth with particularity the efforts of the plaintiff to secure such 
action as he desires on the part of the managing directors or trustees, 
and, if necessary, of the shareholders, and the causes of his failure to 
obtain such action, or the reasons for not making such effort. 

28. 

AMENDMENT OF BILL AS OF COURSE. 

The plaintiff may, as of course, amend his bill before the defendant 
has responded thereto, but if such amendment be filed after any 
copy has issued from the clerk's office, the plaintiff at his own cost 
shall furnish to the solicitor of record of each opposing party a copy 
of the bill as amended, unless otherwise ordered by the court or judge. 

After pleading filed by any defendant, plaintiff may amend only 
by consent of the defendant or leave of the court or judge. 

29. 

DEFENSES — HOW PRESENTED. 

Demurrers and pleas are abolished. Every defense in point of 
law arising upon the face of the bill, whether for misjoinder, nonjoinder, 
or insufficiency of fact to constitute a valid cause of action in equity, 
which might heretofore have been made by demurrer or plea, shall 
be made by motion to dismiss or in the answer; and every such point 
of law going to the whole or a material part of the cause or causes of 
action stated in the bill may be called up and disposed of before final 
hearing at the discretion of the court. Every defense heretofore pre- 
sentable by plea in bar or abatement shall be made in the answer and 



RULES OF PRACTICE IN EQUITY. 9 

may be separately heard and disposed of before the trial of the princi- 
pal case in the discretion of the court. If the defendant move to dismiss 
the bill or any part thereof, the motion may be set down for hearing 
by either party upon five days' notice, and, if it be denied, answer 
shall be filed within five days thereafter or a decree pro confesso 
entered. 

30. 

ANSWER — CONTENTS — COUNTER-CLAIM. 

The defendant in his answer shall in short and simple terms set out 
his defense to each claim asserted by the bill, omitting any mere 
statement of evidence and avoiding any general denial of the aver- 
ments of the bill, but specifically admitting or denying or explaining 
the facts upon which the plaintiff relies, unless the defendant is with- 
out knowledge, in which case he shall so state, such statement operat- 
ing as a denial. Averments other than of value or amount of damage, 
if not denied, shall be deemed confessed, except as against an infant, 
lunatic or other person non compos and not under guardianship, (jv-^r 
jthe answer may be amended, by leave of the court or judge, upon 
reasonable notice, so as to put any averment in issue, when justice 
requires it. The answer may state as many defenses, in the alterna- 
tive, regardless of consistency, as the defendant deems essential to his 
defense. 

The answer must state in short and simple form any counter-claim 
arising out of the transaction which is the subject matter of the suit, 
and may, without cross-bill, set out any set-off or counter-claim 
against the plaintiff which might be the subject of an independent 
suit in equity against him, and such set-off or counter-claim, so set 
up, shall have the same effect as a cross-suit, so as to enable the court 
to pronounce a final judgment in the same suit both on the original 
and cross-claims. 

31. 

REPLY — WHEN REQUIRED — WHEN CAUSE AT ISSUE. 

Unless the answer assert a set-off or counter-claim, no reply shall 
be required without special order of the court or judge, but the cause 
shall be deemed at issue upon the filing of the answer, and any new or 
affirmative matter therein shall be deemed to be denied by the plain- 
tiff. If the answer include a set-off or counter-claim, the party against 
whom it is asserted shall reply within ten days after the filing of the 
answer, unless a longer time be allowed by the court or judge. If the 
counter-claim is one which affects the rights of other defendants they 
or their solicitors shall be served with a copy of the same within ten 



10 RULES OF PRACTICE IN EQUITY. 

days from the filing thereof, and ten days shall be accorded to such 
defendants for filing a reply. In default of a reply, a decree pro con- 
fesso on the counter-claim may be entered as in default of an answer 
to the bill. 

32. 

ANSWER TO AMENDED BILL. 

In every case where an amendment to the bill shall be made after 
answer filed, the defendant shall put in a new or supplemental answer 
within ten days after that on which the amendment or amended bill 
is filed, unless the time is enlarged or otherwise ordered by a judge of 
the court; and upon his default, the like proceedings may be had as 
in case of an omission to put in an answer. 

33. 

TESTING SUFFICIENCY OF DEFENSE. 

Exceptions for insufficiency of an answer are abolished. But if 
an answer set up an affirmative defense, set-off or counter-claim, the 
plaintiff may, upon five days' notice, or such further time as the court 
may allow, test the sufficiency of the same by motion to strike out. 
If found insufficient but amendable the court may allow an amend- 
ment upon terms, or strike out the matter. 

34. 

SUPPLEMENTAL PLEADING. 

Upon application of either party the court or judge, may, upon 
reasonable notice and such terms as are just, permit him to file and 
serve a supplemental pleading, alleging material facts occurring after 
his former pleading, or of which he was ignorant when it was made, 
including the judgment or decree of a competent court rendered after 
the commencement of the suit determining the matters in contro- 
versy or a part thereof. 

35. 

BILLS OF REVIVOR AND SUPPLEMENTAL BILLS — FORM. 

It shall not be necessary in any bill of revivor or supplemental bill 
to set forth any of the statements in the original suit, unless the 
special circumstances of the case may require it. 

36. 

OFFICERS BEFORE WHOM PLEADINGS VERIFIED. 

Every pleading which is required to be sworn to by statute, or 
these rules, may be verified before any justice or judge of any court 



RULES OF PRACTICE IN EQUITY. 11 

of the United States, or of any State or Territory, or of the District 
of Columbia, or any clerk of any court of the United States, or of any 
Territory, or of the District of Columbia, or any notary public. 

37. 

PARTIES GENERALLY — INTERVENTION. 

Every action shall be prosecuted in the name of the real party in 
interest, but an executor, administrator, guardian, trustee of an ex- 
press trust, a party with whom or in whose name a contract has been 
made for the benefit of another, or a party expressly authorized by 
statute, may sue in his own name without joining with him the party 
for whose benefit the action is brought. All persons having an interest 
in the subject of the action and in obtaining the relief demanded may 
join as plaintiffs, and any person may be made a defendant who has 
or claims an interest adverse to the plaintiff. Any person may at 
any time be made a party if his presence is necessary or proper to a 
complete determination of the cause. Persons having a united in- 
terest must be joined on the same side as plaintiffs or defendants, 
but when any one refuses to join, he may for such reason be made a 
defendant. 

Anyone claiming an interest in the litigation may at any time be 
permitted to assert his right by intervention, but the intervention 
shall be in subordination to, and in recognition of, the propriety of 
the main proceeding. 

38. 

REPRESENTATIVES OF CLASS. 

When the question is one of common or general interest to many 
persons constituting a class so numerous as to make it impracticable to 
bring them all before the court, one or more may sue or defend for 
the whole. 

39. 

ABSENCE OF PERSONS WHO WOULD BE PROPER PARTIES. 

In all cases where it shall appear to the court that persons, who 
might otherwise be deemed proper parties to the suit, cannot be 
made parties by reason of their being out of the jurisdiction of the 
court, or incapable otherwise of being made parties, or because their 
joinder would oust the jurisdiction of the court as to the parties before 
the court, the court may, in its discretion, proceed in the cause with- 
out making such persons parties; and in such cases the decree shall 
be without prejudice to the rights of the absent parties. 



12 RULES OF PRACTICE IN EQUITY. 

40. 

NOMINAL PARTIES. 

Where no account, payment, conveyance, or other direct relief is 
sought against a party to a suit, not being an infant, the party, upon 
service of the subpoena upon him, need not appear and answer the 
bill, unless the plaintiff specially requires him to do so by the prayer ; 
but he may appear and answer at his option; and if he does not appear 
and answer he shall be bound by all the proceedings in the cause. If 
the plaintiff shall require him to appear and answer he shall be en- 
titled to the costs of all the proceedings against him, unless the court 
shall otherwise direct. 

41. 

SUIT TO EXECUTE TRUSTS OF WILL — HEIR AS PARTY. 

In suits to execute the trusts of a will, it shall not be necessary to 
make the heir at law a party; but the plaintiff shall be at liberty to 
make the heir at law a party where he desires to have the will estab- 
lished against him. 

42. 

JOINT AND SEVERAL DEMANDS. 

In all cases in which the plaintiff has a joint and several demand 
against several persons, either as principals or sureties, it shall not be 
necessary to bring before the court as parties to a suit concerning such 
demand all the persons liable thereto; but the plaintiff may proceed 
against one or more of the persons severally liable. 

43. 

DEFECT OF PARTIES — RESISTING OBJECTION. 

Where the defendant shall by his answer suggest that the bill of 
complaint is defective for want of parties, the plaintiff may, within 
fourteen days after answer filed, set down the cause for argument as a 
motion upon that objection only; and where the plaintiff shall not 
so set down his cause, but shall proceed therewith to a hearing, not- 
withstanding an objection for want of parties taken by the answer, 
he shall not at the hearing of the cause, if the defendant's objection 
shall then be allowed, be entitled as of course to an order to amend 
his bill by adding parties; but the court shall be at liberty to dismiss 
the bill, or to allow an amendment on such terms as justice may re- 
quire. 



RULES OF PRACTICE IN EQUITY. 13 

44. 

DEFECT OF PARTIES — TARDY OBJECTION. 

If a defendant shall, at the hearing of a cause, object that a suit is 
defective for want of parties, not having by motion or answer taken 
the objection and therein specified by name or description the 
parties to whom the objection applies, the court shall be at liberty 
to make a decree saving the rights of the absent parties. 

45. 

DEATH OF PARTY — REVIVOR. 

In the event of the death of either party the court may, in a proper 
case, upon motion, order the suit to be revived by the substitution of 
the proper parties. If the successors or representatives of the de- 
ceased party fail to make such application within a reasonable time, 
then any other party may, on motion, apply for such relief, and the 
court, upon any such motion may make the necessary orders for 
notice to the parties to be substituted and for the filing of such 
pleadings or amendments as may be necessary. 

46. 

TRIAL TESTIMONY USUALLY TAKEN IN OPEN COURT — 

RULINGS ON OBJECTIONS TO EVIDENCE. 

In all trials in equity the testimony of witnesses shall be taken 
orally in open court, except as otherwise provided by statute or these 
rules. The court shall pass upon the admissibility of all evidence 
offered as in actions at law. When evidence is offered and excluded, 
and the party against whom the ruling is made excepts thereto 
at the time, the court shall take and report so much thereof, or make 
such a statement respecting it, .as will clearly show the character of 
the evidence, the form in which it was offered, the objection made, 
the ruling, and the exception. If the appellate court shall be of 
opinion that the evidence should have been admitted, it shall not 
reverse the decree unless it be clearly of opinion that material preju- 
dice will result from an affirmance, in which event it shall direct such 
further steps as justice may require. 

47. 

DEPOSITIONS — TO BE TAKEN IN EXCEPTIONAL INSTANCES. 

The court, upon application of either party, when allowed by 
statute, or for good and exceptional cause for departing from the 
general rule, to be shown by affidavit, may permit the deposition of 



14 RULES OF PRACTICE IN EQUITY. 

named witnesses, to be used before the court or upon a reference to a 
master, to be taken before an examiner or other named officer, upon 
the notice and terms specified in the order. All depositions taken 
under a statute, or under any such order of the court, shall be taken 
and filed as follows, unless otherwise ordered by the court or judge 
for good cause shown : Those of the plaintiff within sixty days from the 
time the cause is at issue; those of the defendant within thirty days 
from the expiration of the time for the filing of plaintiff's depositions; 
and rebutting depositions by either party within twenty days after 
the time for taking original depositions expires. 

48. 

TESTIMONY OF EXPERT WITNESSES IN PATENT AND TRADE- 
MARK CASES. 

In a case involving the validity or scope of a patent or trade-mark, 
the district court may, upon petition, order that the testimony in 
chief of expert witnesses, whose testimony is directed to matters of 
opinion, be set forth in affidavits and filed as follows: Those of the 
plaintiff within forty days after the cause is at issue; those of the de- 
fendant within twenty days after plaintiff's time has expired; and re- 
butting affidavits within fifteen days after the expiration of the time 
for filing original affidavits. Should the opposite party desire the 
production of any affiant for cross-examination, the court or judge 
shall, on motion, direct that said cross-examination and any re-exam- 
ination take place before the court upon the trial, and unless the 
affiant is produced and submits to cross-examination in compliance 
with such direction, his affidavit shall not be used as evidence in the 

cause. 

49. 

EVIDENCE TAKEN BEFORE EXAMINERS, ETC. 

All evidence offered before an examiner or like officer, together 
with any objections, shall be saved and returned into the court. 
Depositions, whether upon oral examination before an examiner or 
like officer or otherwise, shall be taken upon questions and answers 
reduced to writing, or in the form of narrative, and the witness shall 
be subject to cross and re-examination. 

50. 

STENOGRAPHER — APPOINTMENT — FEES. 

When deemed necessary by the court or officer taking testimony, 
a stenographer may be appointed who shall take down testimony in 
shorthand and, if required, transcribe the same. His fee shall be 



RULES OF PRACTICE IN EQUITY. 15 

fixed by the court and taxed ultimately as costs. The expense of 
taking a deposition, or the cost of a transcript, shall be advanced by 
the party calling' the witness or ordering the transcript. 



51. 

EVIDENCE TAKEN BEFORE EXAMINERS, ETC. 

Objections to the evidence, before an examiner or like officer, shall 
be in short form, stating the grounds of objection relied upon, but 
no transcript filed by such officer shall include argument or debate. 
The testimony of each witness, after being reduced to writing, shall be 
read over to or by him, and shall be signed by him in the presence of 
the officer; provided, that if the witness shall refuse to sign his depo- 
sition so taken, the officer shall sign the same, stating upon the record 
the reasons, if any, assigned by the witness for such refusal. Objec- 
tion to any question or questions shall be noted by the officer upon 
the deposition, but he shall not have power to decide on the compe- 
tency or materiality or relevancy of the questions. The court shall 
have power, and it shall be its duty, to deal with the costs of incompe- 
tent and immaterial or irrelevant depositions, or parts of them, as 
may be just. 

52. 

ATTENDANCE OF WITNESSES BEFORE COMMISSIONER, MASTER 
OR EXAMINER. 

Witnesses who live within the district, and whose testimony may 
be taken out of court by these rules, may be summoned to appear 
before a commissioner appointed to take testimony, or before a master 
or examiner appointed in any cause, by subpoena in the usual form, 
which may be issued by the clerk in blank and filled up by the party 
praying the same, or by the commissioner, master, or examiner, re- 
quiring the attendance of the witnesses at the time and place specified, 
who shall be allowed for attendance the same compensation as for at- 
tendance in court; and if any witness shall refuse to appear or give 
evidence it shall be deemed a contempt of the court, which being 
certified to the clerk's office by the commissioner, master, or exam- 
iner, an attachment may issue thereupon by order of the court or of 
any judge thereof, in the same manner as if the contempt were for 
not attending, or for refusing to give testimony in, the court. 

In case of refusal of witnesses to attend or be sworn or to answer 
any question put by the commissioner, master or examiner or by 



16 RULES OF PRACTICE IN EQUITY. 

counsel or solicitor, the same practice shall be adopted as is now 
practiced with respect to witnesses to be produced on examination 
before an examiner of said court on written interrogatories. 

53. 

NOTICE OF TAKING TESTIMONY BEFORE EXAMINER, ETC. 

Notice shall be given by the respective counsel or parties to the 
opposite counsel or parties of the time and place of examination be- 
fore an examiner or like officer for such reasonable time as the court 
or officer may fix by order in each case. 

54. 

DEPOSITIONS UNDER REV. STAT. §§ 863, 865, 866, 867 — 
CROSS-EXAMINATION. 

After a cause is at issue, depositions may be taken as provided by 
sections 863, 865, 866 and 867, Revised Statutes. But if in any case 
no notice has been given the opposite party of the time and place of 
taking the deposition, he shall, upon application and notice, be en- 
titled to have the witness examined orally before the court, or to a 
cross-examination before an examiner or like officer, or a new depo- 
sition taken with notice, as the court or judge under all the circum- 
stances shall order. 

55. 

DEPOSITION DEEMED PUBLISHED WHEN FILED. 

Upon the filing of any deposition or affidavit taken under these 
rules or any statute, it shall be deemed published, unless otherwise 
ordered by the court. 

56. 

ON EXPIRATION OF TIME FOR DEPOSITIONS, CASE GOES 
ON TRIAL CALENDAR. 

After the time has elapsed for taking and filing depositions under 
these rules, the case shall be placed on the trial calendar. There- 
after no further testimony by deposition shall be taken except for 
some strong reason shown by affidavit. In every such application 
the reason why the testimony of the witness cannot be had orally 
on the trial, and why his deposition has not been before taken, shall 
be set forth, together with the testimony which it is expected the 
witness will give. 



RULES OF PRACTICE IN EQUITY. 17 

57. 

CONTINUANCES. 

After a cause shall be placed on the trial calendar it may be passed 
over to another day of the same term, by consent of counsel or order 
of the court, but shall not be continued beyond the term save in ex- 
ceptional cases by order of the court upon good cause shown by 
affidavit and upon such terms as the court shall in its discretion im- 
pose. Continuances beyond the term by consent of the parties shall 
be allowed on condition only that a stipulation be signed by counsel 
for all the parties and that all costs incurred theretofore be paid. 
Thereupon an order shall be entered dropping the case from the trial 
calendar, subject to reinstatement within one year upon application 
to the court by either party, in which event it shall be heard at the 
earliest convenient day. If not so reinstated within the year, the 
suit shall be dismissed without prejudice to a new one. 

58. 

DISCOVERY — INTERROGATORIES — INSPECTION AND PRODUCTION OF 
DOCUMENTS — ADMISSION OF EXECUTION OR GENUINENESS. 

The plaintiff at any time after filing the bill and not later than 
twenty-one days after the joinder of issue, and the defendant at any 
time after filing his answer and not later than twenty-one days after 
the joinder of issue, and either party at any time thereafter by leave 
of the court or judge, may file interrogatories in writing for the dis- 
covery by the opposite party or parties of facts and documents 
material to the support or defense of the cause, with a note at the foot 
thereof stating which of the interrogatories each of the parties is 
required to answer. But no party shall file more than one set of 
interrogatories to the same party without leave of the court or judge. 

If any party to the cause is a public or private corporation, any 
opposite party may apply to the court or judge for an order allow- 
ing him to file interrogatories to be answered by any officer of the 
corporation, and an order maybe made accordingly for the examin- 
ation of such officer as may appear to be proper upon such interrog- 
atories as the court or judge shall think fit. 

Copies shall be filed for the use of the interrogated party and shall 
be sent by the clerk to the respective solicitors of record, or to the 
last known address of the opposite party if there be no record solicitor. 

Interrogatories shall be answered, and the answers filed in the 
clerk's office, within fifteen days after they have been served, unless 
the time be enlarged by the court or judge. Each interrogatory 



18 RULES OF PRACTICE IN EQUITY. 

shall be answered separately and fully and the answers shall be in 
writing, under oath, and signed by the party or corporate officer 
interrogated. Within ten days after the service of interrogatories, 
objections to them, or any of them, may be presented to the court 
or judge, with proof of notice of the purpose so to do, and answers 
shall be deferred until the objections are determined, which shall be 
at as early a time as is practicable. In so far as the objections are 
sustained, answers shall not be required. 

The court or judge, upon motion and reasonable notice, may make 
all such orders as may be appropriate to enforce answers to inter- 
rogatories or to effect the inspection or production of documents in 
the possession of either party and containing evidence material to the 
cause of action or defense of his adversary. Any party failing or re- 
fusing to comply with such an order shall be liable to attachment, 
and shall also be liable, if a plaintiff, to have his bill dismissed, and, 
if a defendant, to have his answer stricken out and be placed in the 
same situation as if he had failed to answer. 

By a demand served ten days before the trial, either party may 
call on the other to admit in writing the execution or genuineness of 
any document, letter or other writing, saving all just exceptions; and 
if such admission be not made within five days after such service, the 
costs of proving the document, letter or writing shall be pai d by the 
party refusing or neglecting to make such admission, unless at the 
trial the court shall find that the refusal or neglect was reasonable. 

59. 

REFERENCE TO MASTER — EXCEPTIONAL, NOT USUAL. 

Save in matters of account, a reference to a master shall be the 
exception, not the rule, and shall be made only upon a showing that 
some exceptional condition requires it. When such a reference is made, 
the party at whose instance or for whose benefit it is made shall cause 
the order of reference to be presented to the master for a hearing 
within twenty days succeeding the time when the reference was made, 
unless a longer time be specially granted by the court or judge; if 
he shall omit to do so, the adverse party shall be at liberty forthwith 
to cause proceedings to be had before the master, at the costs of the 
party procuring the reference. 

60. 

PROCEEDINGS BEFORE MASTER. 

Upon every such reference, it shall be the duty of the master, as 
soon as he reasonably can after the same is brought before him, to 



RULES OF PRACTICE IN EQUITY. 19 

assign a time and place for proceedings in the same, and to give due 
notice thereof to each of the parties, or their solicitors; and if either 
party shall fail to appear at the time and place appointed, the master 
shall be at liberty to proceed ex parte, or, in his discretion, to adjourn 
the examination and proceedings to a future day, giving notice to the 
absent party or his solicitor of such adjournment; and it shall be the 
duty of the master to proceed with all reasonable diligence in every 
such reference, and with the least practicable delay, and either party 
shall be at liberty to apply to the court, or a judge thereof, for an 
order to the master to speed the proceedings and to make his report, 
and to certify to the court or judge the reason for any delay. 

61. 

MASTER'S REPORT — DOCUMENTS IDENTIFIED BUT NOT SET FORTH. 

In the reports made by the master to the court, no part of any 
state of facts, account, charge, affidavit, deposition, examination, 
or answer brought in or used before him shall be stated or recited. 
But such state of facts, account, charge, affidavit, deposition, exam- 
ination, or answer shall be identified, and referred to, so as to inform 
the court what state of facts, account, charge, affidavit, deposition, 
examination, or answer were so brought in or used. 

62. 

POWERS OF MASTER. 

The master shall regulate all the proceedings in every hearing before 
him, upon every reference; and he shall have full authority to ex- 
amine the parties in the cause, upon oath, touching all matters con- 
tained in the reference; and also to require the production of all 
books, papers, writings, vouchers, and other documents applicable 
thereto; and also to examine on oath, viva voce, all witnesses pro- 
duced by the parties before him, or by deposition, according to the 
acts of Congress, or otherwise, as here provided; and also to direct 
the mode in which the matters requiring evidence shall be proved 
before him; and generally to do all other acts, and direct all other 
inquiries and proceedings in the matters before him, which he may 
deem necessary and proper to the justice and merits thereof and the 
rights of the parties. 

63. 

FORM OF ACCOUNTS BEFORE MASTER. 

All parties accounting before a master shall bring in their respective 
accounts in the form of debtor and creditor; and any of the other 



20 KULES OF PRACTICE IN EQUITY. 

parties who shall not be satisfied with the account so brought in 
shall be at liberty to examine the accounting party viva voce, or upon 
interrogatories, as the master shall direct. 

64. 

FORMER DEPOSITIONS, ETC., MAY BE USED BEFORE MASTER. 

All affidavits, depositions and documents which have been pre- 
viously made, read, or used in the court upon any proceeding in any 
cause or matter may be used before the master. 

65. 

CLAIMANTS BEFORE MASTER EXAMINABLE BY HIM. 

The master shall be at liberty to examine any creditor or other 
person coming in to claim before him, either upon written interroga- 
tories or viva voce, or in both modes, as the nature of the case may 
appear to him to require. The evidence upon such examinations 
shall be taken down by the master, or by some other person by his 
order and in his presence, if either party requires it, in order that the 
same may be used by the court if necessary. 

66. 

RETURN OF MASTER'S REPORT? EXCEPTIONS — HEARING. 

The master, as soon as his report is ready, shall return the same 
into the clerk's office and the day of the return shall be entered by the 
clerk in the Equity Docket. The parties shall have twenty days from 
the time of the filing of the report to file exceptions thereto, and if no 
exceptions are within that period filed by either party, the report 
shall stand confirmed. If exceptions are filed, they shall stand for 
hearing before the court, if then in session, or, if not, at the next 
sitting held thereafter, by adjournment or otherwise. 

67. 

COSTS ON EXCEPTIONS TO MASTER'S REPORT. 

In order to prevent exceptions to reports from being filed for friv- 
olous causes, or for mere delay, the party whose exceptions are over- 
ruled, shall, for every exception overruled, pay five dollars costs to 
the other party, and for every exception allowed shall be entitled to 
the same costs. 



RULES OF PRACTICE IN EQUITY. 21 



APPOINTMENT AND COMPENSATION OF MASTERS. 

The district courts may appoint standing masters in chancery 
in their respective districts (a majority of all the judges thereof con- 
curring in the appointment), and they may also appoint a master 
pro hac vice in any particular case. The compensation to be allowed 
to every master shall be fixed by the district court, in its discretion, 
having regard to all the circumstances thereof, and the compensation 
shall be charged upon and borne by such of the parties in the cause as 
the court shall direct. The master shall not retain his report as se- 
curity for his compensation; but when the compensation is allowed 
by the court, he shall be entitled to an attachment for the amount 
against the party who is ordered to pay the same, if, upon notice there- 
of, he does not pay it within the time prescribed by the court. 

69. 

PETITION FOR REHEARING. 

Every petition for a rehearing shall contain the special matter or 
cause on which such rehearing is applied for, shall be signed by counsel, 
and the facts therein stated, if not apparent on the record, shall be 
verified by the oath of the party or by some other person. No re- 
hearing shall be granted after the term at which the final decree of 
the court shall have been entered and recorded, if an appeal lies to 
the Circuit Court of Appeals or the Supreme Court. But if no appeal 
lies, the petition may be admitted at any time before the end of the 
next term of the court, in the discretion of the court. 

70. 

SUITS BY OR AGAINST INCOMPETENTS. 

Guardians ad litem to defend a suit may be appointed by the court, 
or by any judge thereof, for infants or other persons who are under 
guardianship, or otherwise incapable of suing for themselves. All in- 
fants and other persons so incapable may sue by their guardians, if 
any, or by their prochein ami; subject, however, to such orders as 
the court or judge may direct for the protection of infants and other 
persons. 

71. 

FORM OF DECREE. 

In drawing up decrees and orders, neither the bill, nor answer, nor 
other pleadings, nor any part thereof, nor the report of any master, 



22 RULES OF PRACTICE IN EQUITY. 

nor any other prior proceeding, shall be recited or stated in the 
decree or order; but the decree and order shall begin, in substance, 
as follows: " This cause came on to be heard (or to be further heard, 
as the case may be) at this term, and was argued by counsel; and 
thereupon, upon consideration thereof, it was ordered, adjudged and 
decreed as follows, viz:" (Here insert the decree or order.) 

72. 

CORRECTION OF CLERICAL MISTAKES IN ORDERS AND DECREES. 

Clerical mistakes in decrees or decretal orders, or errors arising 
from any accidental slip or omission, may, at any time before the 
close of the term at which final decree is rendered, be corrected by 
order of the court or a judge thereof, upon petition, without the form 
or expense of a rehearing. 

73. 

PRELIMINARY INJUNCTIONS AND TEMPORARY RESTRAINING ORDERS. 

No preliminary injunction shall be granted without notice to the 
opposite party. Nor shall any temporary restraining order be grant- 
ed without notice to the opposite party, unless it shall clearly appear 
from specific facts, shown by affidavit or by the verified bill, that 
immediate and irreparable loss or damage will result to the applicant 
before the matter can be heard on notice. In case a temporary re- 
straining order shall be granted without notice, in the contingency 
specified, the matter shall be made returnable at the earliest possible 
time, and in no event later than ten days from the date of the order, 
and shall take precedence of all matters, except older matters of the 
same character. When the matter comes up for hearing the party 
who obtained the temporary restraining order shall proceed with his 
application for a preliminary injunction, and if he does not do so the 
court shall dissolve his temporary restraining order. Upon two days 
notice to the party obtaining such temporary restraining order, the 
opposite party may appear and move the dissolution or modification 
of the order, and in that event the court or judge shall proceed to hear 
and determine the motion as expeditiously as the ends of justice may 
require. Every temporary restraining order shall be forthwith filed 
in the clerk's office. 

74. 

INJUNCTION PENDING APPEAL. 

When an appeal from a final decree, in an equity suit, granting or 
dissolving an injunction, is allowed by a justice or a judge who took 



RULES OF PRACTICE IN EQUITY. 23 

part in the decision of the cause, he may, in his discretion, at the 
time of such allowance, make an order suspending, modifying or 
restoring the injunction during the pendency of the appeal, upon such 
terms, as to bond or otherwise, as he may consider proper for the se- 
curity of the rights of the opposite party. 

75. 

RECORD ON APPEAL — REDUCTION AND PREPARATION. 

In case of appeal : 

(a) It shall be the duty of the appellant or his solicitor to file with 
the clerk of the court from which the appeal is prosecuted, together 
with proof or acknowledgment of service of a copy on the appellee or 
his solicitor, a prcecipe which shall indicate the portions of the record to 
be incorporated into the transcript on such appeal. Should the appel- 
lee or his solicitor desire additional portions of the record incorporated 
into the transcript, he shall file with the clerk of the court his prcecipe 
also within ten days thereafter, unless the time shall be enlarged by 
the court or a judge thereof, indicating such additional portions of the 
record desired by him. 

(6) The evidence to be included in the record shall not be set forth 
in full, but shall be stated in simple and condensed form, all parts not 
essential to the decision of the questions presented by the appeal being 
omitted and the testimony of witnesses being stated only in narra- 
tive form, save that if either party desires it, and the court or judge 
so directs, any part of the testimony shall be reproduced in the 
exact words of the witness. The duty of so condensing and stating 
the evidence shall rest primarily on the appellant, who shall pre- 
pare his statement thereof and lodge the same in the clerk's office 
for the examination of the other parties at or before the time of 
filing his prcecipe under paragraph a of this rule. He shall also 
notify the other parties or their solicitors of such lodgment and shall 
name a time and place when he will ask the court or judge to approve- 
the statement, the time so named' to be at least ten days after such 
notice. At the expiration of the time named or such further time as 
the court or judge may allow, the statement, together with any ob- 
jections made or amendments proposed by any party, shall be pre- 
sented to the court or the judge, and if the statement be true, com- 
plete and properly prepared, it shall be approved by the court or 
judge, and if it be not true, complete or properly prepared, it shall 
be made so under the direction of the court or judge and shall then 



24 RULES OF PRACTICE IN EQUITY. 

be approved. When approved, it shall be filed in the clerk's office 
and become a part of the record for the purposes of the appeal. 

(c) If any difference arise between the parties concerning directions 
as to the general contents of the record to be prepared on the appeal, 
such difference shall be submitted to the court or judge in conformity 
with the provisions of paragraph b of this rule and shall be covered by 
the directions which the court or judge may give on the subject. 



76. 

RECORD ON APPEAL — REDUCTION AND PREPARATION — COSTS — 
CORRECTION OF OMISSIONS. 

In preparing the transcript on an appeal, especial care shall be 
taken to avoid the inclusion of more than one copy of the same paper 
and to exclude the formal and immaterial parts of all exhibits, docu- 
ments and other papers included therein; and for any infraction of this 
or any kindred rule the appellate court may withhold or impose costs 
as the circumstances of the case and the discouragement of like in- 
fractions in the future may require. Costs for such an infraction 
may be imposed upon offending solicitors as well as parties. 

If, in the transcript, anything material to either party be omitted 
by accident or error, the appellate court, on a proper suggestion or 
its own motion, may direct that the omission be corrected by a sup- 
plemental transcript. 

77. 

RECORD ON APPEAL — AGREED STATEMENT. 

When the questions presented by an appeal can be determined by 
the appellate court without an examination of all the pleadings and 
evidence, the parties, with the approval of the district court or the 
judge thereof, may prepare and sign a statement of the case showing 
how the questions arose and were decided in the district court and 
setting forth so much only of the facts alleged and proved, or sought 
to be proved, as is essential to a decision of such questions by the 
appellate court. Such statement, when filed in the office of the 
clerk of the district court, shall be treated as superseding, for the pur- 
poses of the appeal, all parts of the record other than the decree from 
which the appeal is taken, and, together with such decree, shall be 
copied and certified to the appellate court as the record on appeal. 



RULES OF PRACTICE IN EQUITY. 25 

78. 
AFFIRMATION IN LIEU OF OATH. 

Whenever under these rules an oath is or may be required to be 
taken, the party may, if conscientiously scrupulous of taking an 
oath, in lieu thereof make solemn affirmation to the truth of the 
facts stated by him. 

79. 

ADDITIONAL RULES BY DISTRICT COURT. 

With the concurrence of a majority of the circuit judges for the 
circuit, the district courts may make any other and further rules and 
regulations for the practice, proceedings and process, mesne and final, 
in their respective districts, not inconsistent with the rules hereby 
prescribed, and from time to time alter and amend the same. 

80. 

COMPUTATION OF TIME — SUNDAYS AND HOLIDAYS. 

When the time prescribed by these rules for doing any act expires 
on a Sunday or legal holiday, such time shall extend to and include 
the next succeeding day that is not a Sunday or legal holiday. 

81. 

THESE RULES EFFECTIVE FEBRUARY 1, 1913 — OLD RULES 
ABROGATED. 

These rules shall be in force on and after February 1, 1913, and 
shall govern all proceedings in cases then pending or thereafter 
brought, save that where in any then pending cause an order has been 
made or act done which cannot be changed without doing substan- 
tial injustice, the court may give effect to such order or act to the 
extent necessary to avoid any such injustice. 

All rules theretofore prescribed by the Supreme Court, regulating 
the practice in suits in equity, shall be abrogated when these rules 
take effect. 



LBJa ? I3 



